Sutherland v. Board of Elections — 108 Misc. 457

Majority

p. 457

Matter of the Application of Kenneth F. Sutherland for a Writ of Mandamus against the Board of Elections of the City of New York.

(Supreme Court, Kings Special Term (Motions),

August, 1919.)

Headnote

Mandamus — when motion for writ of, denied — statutes—Election Law, §§ 36, 38, 43.

Under section 38 of the Election Law state committeemen are to be elected biennially in each even numbered year, and by section 43 of the statute, unless otherwise provided, a vacancy on the state committee must be filled by the remaining members of the committee.

Where the Democratic state committeeman from the sixteenth assembly district in Kings county, elected at the primaries held in 1918, died in the spring of 1919, and upon an application for a writ of mandamus to compel the placing of relator’s name on the primary ballot as a candidate for member of the Democratic state committee, made under the provisions of section 30 of the Election Law which do not apply to the filling of a vacancy except where there has been a change in the boundaries of an assembly district after the election of state committees, etc., nothing is shown to bring petitioner under these provisions, the writ will be dismissed.

Application for a writ of mandamus.

Bennett, Werner & Nave, for petitioner.

William P. Burr, corporation counsel (Joseph Reilly, of counsel), for board of elections.

Petitioner seeks .to have his name placed on the primary ballot as a candidate for member of the Democratic state committee. The person elected such state committeeman from the sixteenth assembly district in Kings county in the primaries in

p. 458

1918, died in the spring of this year. The petitioner seeks to be chosen to fill the vacancy thus created. He alleges he has been duly elected to fill snch vacancy by the members of the Democratic county committee of the said assembly district.

The Election Law provides that state committeemen shall be elected biennially in each even numbered year. § 38. It also contains the general provision, that unless otherwise provided a vacancy in the state committee shall be filled by the remaining members of that committee. § 43. Section 36 also covers this subject. It expressly provides that in case of the death of a member of a state committee the vacancy “ shall be filled by the remaining members of such state committee as provided in section forty-three. ’ ’ Petitioner evidently moves under the further provisions of section 36. But they do not apply except there has been a change of the boundaries of an assembly district after the election of state committeemen and there be no member or more than one member resident in the changed district. Then the vacancy may be filled by the members of the county committee in that district until the next official primary election, when it shall be filled by election. There is no claim here of any change of boundaries and nothing is shown to bring the petitioner within those provisions. His case is governed by the other provisions. See Matter of Werther, 94 Misc. Rep. 681 , 683.

Motion denied. -